Goldstein v. Floridian Homes, Inc., 30339
| Citation | 331 S.W.2d 124 |
| Decision Date | 19 January 1960 |
| Docket Number | No. 30339,30339 |
| Parties | I. E. GOLDSTEIN and Mary Goldstein, Copartners d/b/a Wiles-Chipman Lumber Company (Plaintiffs), Appellants, v. FLORIDIAN HOMES, INC., a Corporation et al. (Defendants), Respondents. |
| Court | Court of Appeal of Missouri (US) |
Oliver F. Erbs and Robert A. Cedarburg, St. Louis, for plaintiffs-appellants.
Ludwig Mayer, Clayton, for defendants-respondents.
DOERNER, Commissioner.
This is a purported appeal by plaintiffs from an order of the Circuit Court of St. Louis County sustaining a motion to dismiss the cause of action as to one defendant.
The suit is one for an equitable mechanic's lien, brought by plaintiffs under Section 429.270 RSMo 1949, V.A.M.S., to recover a judgment against Floridian Homes, Inc., a corporation, and Thomas G. Todd, doing business as Todd Construction Company, for the balance of $2,253.22 alleged to remain due for materials furnished the latter, as sub-contractors, which material was claimed to have been used in the erection of improvements being constructed by the general contractor, Donald V. McKee, for the then owner of the land, W. H. Stanley. The petition is in the usual form, and in addition to the parties named, other lien claimants were joined as defendants. It appears from plaintiffs' petition that after the material had been furnished, but before the time within which the lien was required to be filed, W. H. Stanley died; that his heirs were Mary Louise Sindell Hribernik, Virginia Handrahan, and Doris Kuhn, and those individuals were also joined as defendants, as was Doris Kuhn as Administratrix of the Estate of W. H. Stanley.
An affidavit for service by mail was filed on May 16, 1957, in which it was stated that defendant Virginia Handrahan was a non-resident and could not be served with process in this state. Thereafter, a summons, together with a copy of the petition, was sent by registered mail to defendant Handrahan by the Circuit Clerk, at her address in Minneapolis, Minnesota, to be delivered only to the addressee, and in due time the Clerk filed a return receipt signed 'Virginia Handrahan.' According to the transcript, the suit appears to have lain dormant until November 28, 1958, when plaintiffs suggested the minority of defendant, Virginia Handrahan, and Ludwig Mayer, Guardian of the Estate of Virginia Handrahan, was appointed guardian ad litem. At the request of plaintiffs, this order was set aside on December 24, 1958, and a new order entered appointing Ludwig Mayer, Guardian of the Estate of Virginia Handrahan as guardian ad litem and ordering a summons to issue for the guardian ad litem.
Pursuant thereto, a summons directed to "Ludwig Mayer, guardian of the Estate of Virginia Handrahan as guardian ad litem" was issued, and was served by the Sheriff of St. Louis County on December 29, 1958. On January 5, 1959, '* * * Ludwig Mayer, Guardian of the Estate of Virginia Handrahan, a Minor, as Guardian ad Litem * * *,' appearing specially for the purpose, filed a motion to dismiss plaintiffs' cause of action and petition as to 'this defendant.' A hearing was held on that motion on January 9, 1959, at the conclusion of which the motion was withdrawn. On the same day plaintiffs requested, and the trial court directed, that '* * * per order of 12/24/58 * * *' a summons be issued for '* * * Ludwig Mayer, Guardian of the Estate of Virginia Handrahan as such Guardian ad Litem * * *.'
Thereafter, on January 13, 1959, '* * * Ludwig Mayer, Guardian of the Estate of Virginia Handrahan, a Minor, * * *' again appearing specially, filed a motion alleging that the defendant Virginia Handrahan was a minor, having been born on April 10, 1938; that Ludwig Mayer had been appointed guardian of her estate by the Probate Court of St. Louis County on January 28, 1957, and was still serving as such; that as such guardian he had never been served with notice of the lien nor with process in the cause, prior to December 24, 1958; that the court acquired no jurisdiction over the defendant Virginia Handrahan by reason of the service by registered mail; that plaintiffs had failed to join Ludwig Mayer, Guardian of the Estate of Virginia Handrahan, a minor, as a party defendant, as required by the statutes; and that any action against such party was...
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